Composition of Court: Geoghegan J., deValera J., Gilligan J.
Judgment by: Geoghegan J.
Status of Judgment: Approved
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THE COURT OF CRIMINAL APPEAL
Geoghegan J. de Valera J. Gilligan J. 39/03
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
JUDGMENT of the Court delivered by Mr. Justice Geoghegan on the 27th day of January 2005
This is an application for leave to appeal against conviction and sentence. The two convictions were for conspiracy to rob and for using a mechanically propelled vehicle without the consent of the owner for which respective sentences of ten years and five years were imposed.
The trial lasted approximately six weeks before Judge Carroll Moran and a jury in Portlaoise Circuit Court. The applicant was originally indicted along with three other named defendants, Kevin Lynch, Ian Quinn and Gareth Quinn. There were ten counts on the indictment but only counts 1, 2, 3, 4 and 7 concerned the applicant. In the event, the fourth-named defendant, Gareth Quinn, did not turn up for his trial and the case proceeded against the other three. This necessarily involved some renumbering of the counts. The count of using the mechanically propelled vehicle without the consent of the owner which had originally been count 7 became count 6. Otherwise nothing turns on the changes in numbering. The count of conspiracy to rob in respect of which the applicant was convicted was at all stages count No. 1. The applicant was found not guilty of conspiracy to commit aggravated burglary the particulars of which count were that the applicant Kevin Lynch and Iain Quinn on diverse dates between the 1st October, 2001 and the 7th December, 2001 (both dates inclusive) had conspired to enter the branch office of Allied Irish Banks Plc at Abbeyleix in County Laois as trespassers with intent to steal cash therein and to have with them at that time a firearm or weapon of offence. The applicant was also found not guilty of counts 3 and 4 which were both counts involving possession of a firearm with intent to commit an indictable offence or to resist or prevent arrest contrary to section 27B of the Firearms Act, 1964 as inserted by section 9 of the Criminal Law (Jurisdiction) Act, 1976 and as amended by section 14(5) of the Criminal Justice Act, 1984. In the case of count 3 the alleged firearm was a sawn-off shotgun and in the case of count 4 it was a stun gun.
For all practical purposes this application for leave to appeal relates only to count No. 1. An appeal in relation to the use of a mechanically propelled vehicle without the consent of the owner is not being seriously pursued.
Thirty four grounds of appeal have been inserted in the official written grounds of appeal. These have been elaborated upon in written submissions. However at the oral hearing of this application Mr John Peart S.C., counsel for the applicant sensibly condensed them into six real grounds. These can be summarised as follows:
1. Having regard to the provisions of section 9(4) of the Criminal Law Act, 1997 the trial judge ought to have suggested to the jury that before they would convict in relation to the count for conspiracy to rob they should consider whether a conviction of a lesser offence based on the same facts would be more appropriately warranted. Tied in with this submission was an argument that either a complete acquittal or a conviction of a lesser offence were the only verdicts open to the jury once they had acquitted on counts 3 and 4.
2. Part of the evidence on which the prosecution relied was documentation and other materials found inside a Peugeot car belonging to the occupier of the house outside which it was parked. The gardaí had obtained a search warrant in respect of the house. It is argued and, indeed, not disputed that the search warrant would not have covered the car but it was part of the State case that the owner permitted the search of the car and its removal. Part of the evidence supporting the existence of such permission was evidence of words actually spoken by the owner and as the owner did not give evidence it is submitted that that evidence ought to have been ruled out as hearsay.
3. It is submitted that the judge ought not to have admitted in evidence answers to a garda interrogation contained in memoranda given the particular circumstances in which the interrogation took place.
4. At one point in the trial judge’s charge, he said the following to the jury:
“The real issue of fact in this case, and there have been six weeks of evidence about it, is, have the police planted this evidence? Have the guards tried to stitch up innocent men? That is the issue, as I see it, in the case.”
Mr. Peart submits that in making that observation the learned trial judge was reversing the onus of proof.
5. The trial judge failed to bring adequately to the jury’s attention the defence case which was the unreliability of State evidence, several instances of which were allegedly demonstrated to the jury by Mr. Peart in his closing speech.
6. Notwithstanding that the earliest date of the conspiracy alleged was the 1st October, 2001 the trial judge admitted evidence of matters before that date.
Dealing with each of these grounds in turn and starting with the first the court is of the view that this ground of appeal must fail. Section 9(4) of the Criminal Law Act, 1997 reads as follows:
“Where, on a person’s trial on indictment for any offence except treason, murder to which section 3 of the Criminal Justice Act, 1990, applies or murder, the evidence does not warrant a conviction for the offence specifically charged in the indictment, but the allegations in the indictment amount to or include (expressly or by implication) an allegation of another offence, that person may be found guilty of that other offence or of an offence of which he or she could be found guilty on an indictment specifically charging that other offence.”
The first point to be made about this subsection is that it is clearly intended to aid the prosecution rather than the defence, the purpose behind it being that if the jury did not accept all the ingredients of the offence as alleged by the Director of Public Prosecutions those that they did accept might be sufficient to convict of a lesser offence and that, of course, would be more satisfactory to the Director of Public Prosecutions than a complete acquittal. The court does not consider that this is an appropriate case to consider the duties (if they exist) of the trial judge to inform the jury of this right. Obviously, if the Director of Public Prosecutions considered that the issue arose a requisition in that regard could have been made by counsel for the Director of Public Prosecutions. Alternatively, counsel for the defence might consider it tactically wise to make such a requisition but equally he might think it tactically wise not to do so.
It is difficult to see any circumstances in which a ground of appeal of this nature could succeed. In the first place an appellate court would be slow to entertain such a ground in the absence of a requisition because the failure to make a requisition might easily be tactical but quite apart from that consideration the court would have before it a conviction by the jury of the principal offence. In those circumstances the issue of whether there could have been a conviction of a lesser offence does not really arise. Of course, in a sense, Mr. Peart has tried to make two quite separate points under this heading. He suggests that a conviction of the main offence was not warranted having regard to the acquittals on the two offences of the possession of firearms. But it has been correctly pointed out in the written submissions on behalf of the Director of Public Prosecutions that there was found in the boot of one of the relevant cars in the car park at the back of the AIB Bank in Abbeyleix balaclavas, a fedora hat, scarves, jackets and a bullet-proof vest. The Director of Public Prosecutions points out that some of the items of clothing bore forensic traces such as motor car touch up paint and paint flakes which were consistent with the touch-up paint used to paint over the cuts made to the grille at the back of the bank and the sequences of paints previously painted on to that grille. Furthermore, touch-up paint of the same type together with items bearing the same sequence of paint flake had been found in another relevant car, the Peugeot. The Director of Public Prosecutions goes on to point out that there was evidence that the applicant admitted in the course of interviews with the gardaí that his role was to drive the getaway car.
The court accepts the argument of the Director of Public Prosecutions that although the evidence did not establish that the applicant himself played a role in cutting bars on the window at the back of the bank or in the booking of accommodation or in the taking of cars there was evidence that he was aware of all these arrangements and was clearly a participator. The court is satisfied that the conviction on count No. 1 was not inconsistent with the acquittals in relation to possession of firearms.
Turning now to the hearsay issue, the nature of which has been outlined earlier in this judgment. Mr. Peart has relied on Cullen v. Clarke  I.R. 368. While he is right in regarding it as an important decision of the former Supreme Court on the principles of hearsay it would not appear to the court to be helpful to the applicant in this case and, indeed, it is noted that Mr. Owens, S.C. counsel for the Director of Public Prosecution also relies on it. It is worth quoting at some length the lucid treatment of the subject by Kingsmill Moore J. in his judgment which was the principal judgment of the court. Starting at the middle of p. 378 of the report Kingsmill Moore J. said the following.
“In view of some of the arguments addressed to the court, it is necessary to emphasise that there is no general rule of evidence to the effect that a witness may not testify as to the words spoken by a person who is not produced as a witness. Thereis a general rule, subject to many exceptions, that evidence of the speaking of such words is inadmissible to prove the truth of the facts which they assert; the reasons being that the truth of the words cannot be tested by cross-examination and has not the sanctity of an oath. This is the rule known as the rule against hearsay. In answer to the invitation of the trial judge, I may perhaps call attention to some of the cases in which evidence may properly be given of words uttered by persons who are not called as witnesses.
First: the utterance of the words may itself be a relevant fact, quite apart from the truth or falsity of anything asserted by the words spoken. To prove, by the evidence of a witness who heard the words, that they were spoken, is direct evidence, and in no way encroaches on the general rule against hearsay. In the present case the refusal of an employer to engage the workman is a relevant fact. A workman could give evidence that on asking the employer for a job the employer said ‘no’.
Second: where a fact or transaction is in issue declarations which accompany or explain the fact or transaction are generally admitted under the somewhat vague principle that they form part of the res gestae. If the employer had said, ‘No, but ask me again in a week’s time, ‘the statement act, showing that the refusal was not absolute and unqualified might yield to altered circumstances. Again, in so far as the evidence of the word spoken is offered merely to explain or qualify the nature of the act, there is no breach of the hearsay rule.
Third: the statements accompanying the act may be offered as showing the mind of the actor at the time of the doing of the act. Here there is a breach of the hearsay rule, in so far as reliance is placed on the truth of the words uttered, a truth which is not sanctified by an oath or capable of being tested by cross-examination. But here resort can be had to another well established practice, sometimes regarded as falling within the res gestae extension, sometimes as an exception to the hearsay rule. ‘When the motive or reason of a person for doing an act, or the intention with which he does it, is relevant to the issue, his statement made at the time of the doing of the act is evidence of his motive, reason, or intention’: Law of Hearsay Evidence, Tregarthen at p. 55. Whenever the bodily or mental feelings of a person are material to be proved, the usual expression of such feelings made at or about the time in question may be given in evidence. If they were the natural language of the affection whether of body or mind, they furnish original and satisfactory evidence of its existence, and the question whether they were real or feigned is for the jury to determine’ Phipson’s Law of Evidence, 8th ed., 1942, at p. 71’.”
The hearsay argument was fully vented before the learned trial judge and on day 17 i.e. 12th November, 2002 at p. 3 of the transcript there is a short ruling by Judge Moran which is crystal clear. It is worth quoting in full:
“Having heard the evidence on the voir dire as to what is called the Harman Street voir dire, as to whether or not the prosecution can adduce evidence to what was seized in the motor car which was parked outside the house and which was driven by Jane Nolan while the guards were in the process of conducting a search of the house, pursuant to a search warrant, I am more than satisfied on the evidence that Miss Nolan gave the keys of the car to the gardaí, that she consented to them searching the vehicle, and that the evidence that they gave as to that consent is admissible, is not hearsay evidence, it is evidence not relating to what Miss Nolan said as to something else which would be hearsay, it is evidence that she consented to the search of the car. That is admissible and it is not hearsay in the usual sense.
The gardaí having been given that consent to search the car, it follows in logic, that anything they found there they are entitled to seize or entitled to adduce in evidence.”
It is not suggested by counsel for the applicant that the learned trial judge in making that ruling in any way misunderstood the evidence. What is objected to is his failure to label the evidence as hearsay of a kind which would not be admissible. However, his reasoning appears to this court to be correct. The reference to the keys being handed over indicates that primarily the evidence was evidence of actions by Miss Nolan indicating consent and in so far as these were words they were merely accompanying those actions. Within the principles set out by Kingsmill Moore J. above, this does not seem to contravene the hearsay rule. The second of the grounds of appeal put forward in court by Mr. Peart must, therefore, also fail.
The third of Mr. Peart’s grounds of appeal would appear to the court to be almost unstateable. There is nothing to suggest that the learned trial judge applied incorrect principles to the question of whether the memoranda should be admitted in evidence or not. In the relevant voir dire the applicant denied that he had made the answers alleged by the gardaí to questions put to him and the case was made that the statement taken from him and included in the memorandum ought not to be admitted in evidence because of a number of elements of alleged oppression and unconstitutionality. First of all there was the suggestion that the applicant having been wounded in the right shoulder and taken to hospital where a bullet was removed and a wound stitched was not in a fit state to be questioned. However, the trial judge had the evidence that three doctors, Dr. Keating, Dr. Achmed and Dr. Madden had not cautioned the gardaí that the applicant should not be questioned and, indeed, Dr. Achmed had expressly advised that he was fit to be questioned. Dr. Achmed had given evidence that he was asked by the relevant garda two or three times and he gave advice on two or three occasions to the effect that the applicant was fit to be questioned. On foot of that evidence the learned trial judge took the view that he was in general fit to be questioned and clearly there would be no basis for this court overruling that finding. It was further alleged that an inducement had been made to the applicant to get him to make certain admissions. That allegation was rejected by the learned trial judge in his ruling and he went on to say that even if he had accepted it it was quite clear to him that it did not make the slightest difference to the conduct of the questions and answers. The next complaint was that the applicant’s clothes had been removed and that he was interviewed while wearing a paper suit. It was suggested that as a consequence he was frozen throughout the questioning. The learned trial judge accepted that the removal of the clothes was reasonable having regard to the requirements of the investigation and that it was reasonable that the applicant be given a paper suit. He accepted the evidence of the gardaí that the room was not cold, that the garda station was heated and that the applicant had made no complaints at the time about coldness. Apparently, the applicant had to remove all his clothes including his underpants and great play was made of this last alleged embarrassment. But the learned trial judge in his ruling while accepting that the applicant was momentarily naked before members of the gardaí took the view that even if that was a breach of some regulation it could not have humiliated the applicant to such an extent as to lead to the conclusion that any questioning of him after that was unfair or oppressive.
The ruling of the learned trial judge was given on day 23 i.e. the 18th November, 2002 and after dealing with each of the accused all of whom were seeking to have their statements excluded, the judge summed up the position at p. 47 of the transcript as follows:
“Having said all that, I have come to the conclusion, first, that the gardaí did have a reasonable belief on which to base their arrest, given all the circumstances which I have heard in the evidence, secondly, that the interrogation of the three accused was done under medical examination and medical advice; thirdly, I am satisfied there was no deprivation of access to any solicitor; I am satisfied that none of the interviews was of any inordinate length of time; I am satisfied that whatever force was used in effecting the arrest of the accused was reasonable and was not excessive given all the circumstances that pertained in the car park at the time; I am happy that the statements taken were not taken in an unfair or oppressive manner either by reason of the nature of the interviews, the manner in which they were conducted, the duration or the time they were held, and I do not hold that they were persistent to the point of harassment. I am satisfied that these matters have been borne out by the prosecution beyond reasonable doubt and accordingly I am obliged in law to hold that the statements are admissible”.
There had been a suggestion of a shoot to kill policy by the gardaí which was rejected by the judge. There does not appear to be any basis for suggesting that it was not open to the learned trial judge to make the findings which he did make and in these circumstances they cannot be interfered with by this court. Therefore, this ground of appeal must also fail.
The fourth ground of appeal as put forward by Mr. Peart at the oral hearing related to two sentences as cited above contained in the trial judge’s charge. Because of the way those sentences were worded Mr. Peart has submitted that the learned trial judge in his charge was reversing the onus of proof. There is no valid basis for this submission. The two sentences and it is worth repeating them
“The real issue of fact in this case, and there has been six weeks of evidence about it, is, have the police planted this evidence? Have the guards tried to stitch up innocent men? That is the issue,”
were in the context of the judge explaining to the jury what were the issues in contention in the case and were not spoken in the context of any explanation as to the onus or burden of proof all of which was gone into carefully by the trial judge in the usual way. The learned trial judge was explaining to the jury that most of the matters alleged by the prosecution were not really denied despite the six weeks of hearing. He pointed out that it had not been disputed that the three accused men travelled from Dublin Airport in high powered stolen cars in the manner as described by the garda witnesses and that it was not disputed that they all ended up in a car park near the bank in Abbeyleix. There had been evidence of various phone calls which was also not disputed as the judge pointed out. However, even at that point the judge was careful enough to say that the jury must nevertheless be satisfied beyond reasonable doubt that all those matters were proved. He then went on to explain why he was alluding to these uncontested matters. It was in order to bring into the open what were the real matters in contention and as he saw it that was the question of whether the police had planted the evidence and wrongfully tried to frame innocent men. It is important to reiterate therefore that that part of the charge was not dealing with onus or burden of proof. It was dealing with issues only. The judge gave the usual careful directions relating to onus and burden and the presumption of innocence.
The fifth ground put forward by Mr. Peart was that the trial judge failed to bring adequately to the jury’s attention the defence case which he summarised as being the unreliability of State witnesses. Mr. Peart was particularly aggrieved that six accusations of lies by State witnesses which he had suggested in his closing speech were not adequately covered by the learned trial judge in his charge.
While it is always important that the trial judge summarises for the jury the defence case as well as the prosecution case he is not obliged to refer to every piece of evidence that the jury heard and still less is he obliged to refer to every argument put forward in speeches to the jury. Judge Moran’s charge was carefully structured in which he gave a précis of the evidence of the prosecution case and then went on to summarise the defence case. He went into the defence case in considerable detail. The judge first dealt with the matters which were common to all three defendants. He reminded the jury that their case was that there was no connection between any of the accused and the items which the prosecution were producing and were relying on. He reiterated the defence argument that there were no fingerprints, no DNA, no hair samples, no bodily swabs and no fibres found which would connect them with any of the damning implements such as the stun guns, the scanner, the walkie-talkie, the shotgun, the instruction sheet about the shotgun etc. and that the only evidence as suggested by the defendants were fibres connecting one of the accused (not Mr. Bishop) to one of the cars. The defence had argued that one would expect forensic evidence on all of these matters and that that was absent. The judge carefully pointed that out to the jury. He then summarised the defence case as follows:
“The defence say that this was a showcase, which went wrong; that the gardaí were on a glory hunt and the thing went disastrously and sadly wrong. One of their number Sergeant John Eiffe was tragically killed, not by the accused but by what is really disgustingly called nowadays, friendly fire. They were faced with the prospect of huge media embarrassment and to avoid the adverse attention of the media they decided to stitch up the accused and they planted the evidence, including the shotgun at Ballinakill Avenue the laneway up to the church and the materials found in the back of the BMW, the Peugeot and so on, the filofax and the instruction sheet in the Peugeot, the stun gun, the walkie-talkies, the scanner in the BMW and they say that in stitching up the accused they even went so far as to break the hacksaws, which had been brought to Dublin to bring them back to Abbeyleix; this is a suggestion that the hacksaws would be used to get some of the material from the window grille fitted up on them. The defence say that the scene was not properly preserved; that is a matter for you members of the jury, and that there could have been interference. They say that the crime was unlikely and implausible because it appeared to be very stupid. They say in so far as the gardai had confidential information as to the commission of a robbery in the Midlands it was the robbery in Urlingford which was the robbery that the information was related to, which had taken place at 3.00 o’clock and did not relate to this alleged incident which took place after the bank closed. They say that nobody was present when these matters were discovered nobody apart from the gardaí themselves; there was no independent person present when these matters were discovered either in the laneway or in the back of the cars or in the house at 3 St. Aengus Park in Tallaght which is the home of Ian Quinn. They say you have to assess the credibility of the witnesses and they refer to the evasive way in which the witnesses answered questions.”
The judge then went on to deal with the applicant’s personal position and he told the jury that the point was made on the applicant’s behalf that there were a number of lies or at least discrepancies in the evidence. He said that the Peugeot was not driveable because one of the components in the gear casing was blocking the gear leaver and the car could not be moved. He referred to the suggestion the instruction sheet was so simple and really conveyed nothing except what an ordinary person would know anyway about how to work the stun gun, that there was no point hiding it in the gear casing, that it should have been burned or thrown away or whatever, that there was little point in hiding it in the gear casing and that goes the credibility of the witness who says it was found there. There was then a reference to a defence point that Garda Lee who discovered the filofax could not give any particulars about the Peugeot found in Harmon Street, Dublin, whether it was a hatchback or whether there were any baby seats in it, the colour of the upholstery or whether the glove box opened from the top or from the side. Reference was then made to the difficulty of cutting the window grille with the hacksaw a point made on behalf of the applicant and then to an alleged discrepancy between Sergeant Kelly of the gardaí and the doctor who asked whom about whether the applicant was fit to be interviewed. The judge explained that these were all matters for the jury. The jury might or might not think them significant or of importance.
The court does not accept that the learned trial judge did not put the defence case adequately and this ground of appeal must also be rejected.
The sixth and last ground of appeal put forward by Mr. Peart was to the effect that the trial judge admitted evidence of matters existing before the 1st October, 2001 which was the earliest date of the alleged conspiracy. A link point was made that a good deal of this evidence related to involvement of Mr. Quinn and that in the event he was not available at the trial. The objection as to the evidence of matters prior to the 1st October, 2001 has been neatly answered in paragraph (4) of the written submissions filed on behalf of the Director of Public Prosecutions. This paragraph reads as follows:
“So, the evidence of connection of Gareth Quinn with the flat in Edenderry and the Peugeot motor car was not tendered for the purpose of establishing that either he or the applicant or the other alleged conspirators were involved in any conspiracy prior to the 1st October, 2001 but to show his association with the Peugeot car and with the tools used to saw through the grille at the back of the bank and to show his association with the booking of accommodation where the conspirators could ‘lie low’ after achieving their purpose.”
There is really nothing else which can be usefully added. Clearly, the evidence was not admitted with a view to establishing some conspiracy before the 1st October, 2001 but rather to provide circumstantial evidence pointing to the alleged conspiracy after the 1st October, 2001. There can be no valid objection to such evidence. It is entirely irrelevant that Mr. Quinn did not turn up for his trial. Even if he had, he might never have given any evidence.
For all these reasons the application for leave to appeal against conviction must be refused.